OSHA Act: Coverage, Exemptions, and Preemptions, Lecture notes of Construction law

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Week 2 – Construction Law

Federal Plans

OSH Act has 34 sections

Gives compliance officer

the right to inspect

• interstate commerce

proof

Covered Sectors:

Construction – 1926

General Industry –

Maritime – 1915

Agriculture – 1918

Covers US and its territories

OSH ACT - 1970

Covered- General

• Section 3(4) of the Act defines a person

as one or more individuals, partnerships,

associations, corporations, business

trusts, legal representatives,

or any organized group of persons.

Who’s

Covered?

Workers paid in kind= covered

Welfare recipients = covered

Professionals= covered

Indians= covered (regardless if on reservation)

Agricultural Employees (non-family members)

Independent

Contractors

Broadly construed in light of the

statutory purpose and economic

realities of the relationship

Economic Reality test

Right to control Doctrine

Common law tests

Independent

Contractors

Economic Reality Test

Who do the workers consider

their employer to be?

Who pays wages?

Whose responsibility is it to

control work?

Who hires/fires?

How are wages established?

Can the worker increase wages

based on efficiency rather than

judgement?

Not Covered

Federal government not an employer

(Therefore not covered under OSH act)

Home offices = not covered

Household employees = not covered

Not Covered

Must have employees at the time of alleged

violation

Prevents employers from closing out of

business and reopening

Pre-Emptions

Covered by another federal act of

safety

Fed agency has used its statutory

authority

Their actions will suffice for OSHA

Airlines, nuclear, coast guard,

customs, defense department, EPA,

explosives, mines, motor carriers,

NASA, Postal, Offshore platforms,

pipelines, and railroads

State Plans

Are waning

Must be at least as stringent as

Fed

• States keep penalty monies

Application process

Rule Promulgation- Fed

6A – Adopt a national consensus standard – example, PEL’s (adopted from

AGCIH/NIOSH)

6B – Set administrative procedures modifying, revoking and issuing standards

(see handout)

6C – Emergency issuance

6D – Variance to the standards